Chapter 6 - The Failure to Correct the
My German engineer very argumentative and tiresome. He wouldn’t
admit it was certain that there was not a rhinoceros in the room.
The aim of this chapter is to
analyse the factors which led to the failure to correct the record publicly in
relation to the ‘children overboard’ story, prior to 10 November 2001. The chapter is in three parts.
The Committee begins by
examining the role played by Mr Reith and his
staff in sustaining the original mistaken report and the photographs as
evidence for it. It goes on to canvass briefly the evidence which is available
concerning the knowledge of the office of the Prime Minister of the amended
advice from Defence.
Finally, the Committee assesses
whether, in its view, officers of the Defence organisation could have done more
to ensure that the record was corrected prior to the election on 10 November.
That assessment will form the framework for a broader discussion, in the
following chapter, of the lessons to be learned from this episode in relation
to public administration and accountability in Australia.
Role of Minister for Defence
and his Office
The actions taken by Mr Reith and his
staff in their attempt to confirm and sustain the original report that children
were thrown overboard from SIEV 4 may be divided into three phases, as follows:
the search for confirmation, 7 to 11 October;
response to advice relating to the photographs
on 11 October; and
response to advice from Air Marshal Houston on 7
In considering these actions
and the reasons for them, the Committee is hampered by the fact that none of
the individuals concerned chose to give evidence to its inquiry, despite
numerous requests that they do so. In the following discussion, therefore, the
Committee relies upon the statements that each made to Ms Bryant’s
inquiry, upon the evidence of others involved in relevant discussions and upon
the public record.
The search for confirmation
The search for details of the
‘children overboard’ incident began almost as soon as the Minister was first
informed of it.
The watchkeeper from Strategic
Command Division (SCD), Flight
Lieutenant Jason Briggs, informed Ms Bryant that Mr Ross Hampton, the Minister’s media adviser, had rung him on the morning of
Sunday 7 October asking for any information on children being thrown into the
At this stage, Flight Lieutenant Briggs said he had never heard of Mr Hampton and told
him that he could not provide the information requested. He directed Mr Hampton to
contact the Defence Liaison Officer in the Minister’s office. Subsequently, the
Head Strategic Command (HSC), Air Vice Marshal Titheridge, called the
watchkeeper authorising him to provide Mr Hampton ‘with a
run down of what was happening on SIEV 4’.
Briggs then told Mr Hampton that there was no information on children being thrown into the
water. ‘Soon after that’, he told Ms Bryant, ‘Group Captain Walker ... returned from the IDC meeting and asked the same question’. Again the watchkeeper checked all
the written material, and then contacted Australian Theatre to ask if they had
any information about the incident. They did not.
In response to demands from Mr Hampton,
however, Flight Lieutenant Briggs began to
compile faxes for him paraphrasing the situation reports from HMAS Adelaide. He stated that: ‘Each fax was sent in response to one or more
calls from Mr Hampton’. He further noted that:
When there was an apparent lag in the flow of information, Mr
Hampton had complained. Flight Lieutenant
Briggs stated that at this point he had told Mr Hampton that no faxes had been
sent because there was no information worth telling him - particularly, nothing
that he did not already know, judging by the conversation ... Mr Hampton had seem
agitated and quite angry at times, saying that he was under pressure from media
outlets to meet their publication deadlines.
The Committee notes that faxes
were sent to Mr Hampton from Strategic Command at 2.00pm, 2.15pm, 7.15pm and 8.10pm on 7 October, and at 5.20pm on 8 October 2001. None of the faxes
refer to children in the water.
On 10 October, prior to the
release of the photographs to the media, Mr Hampton again
sought detailed information about the incident, this time from Public Affairs
and Corporate Communication. As outlined in the previous chapter, both Captain Belinda Byrne and Brigadier Gary Bornholt told Mr Hampton that
Strategic Command had no evidence that any of the fourteen SUNCs who entered
the water on 7 October were women or children.
Finally on 11 October, a
message reached Rear Admiral Ritchie via
Maritime Command and NORCOM, that Mr Hampton wanted
to speak directly to CO Adelaide
about the ‘children overboard’ incident. Rear Admiral Ritchie refused permission for him to do so, and directed instead that the
witness statements from HMAS Adelaide be collected and forwarded up the chain of command.
Over the same period, Mr Scrafton also
sought further information and confirmation of the ‘children overboard’ report. At about 9.30am on 10
October, he rang Rear Admiral Ritchie about
the matter, and at 12.42pm Rear Admiral Ritchie
telephoned back with his advice.
As outlined in the previous
chapter, Rear Admiral Ritchie told Mr Scrafton that
there was as yet no evidence available to support the report that children had
been thrown overboard. However, CO Adelaide
had said that ‘he had reports of sailors on the camera’s disengaged side
picking up children from the water’,
so Rear Admiral Ritchie thought
that the original report might be confirmed by witness statements which were in
the process of being taken from the crew.
On the afternoon of 10 October,
Mr Reith gave an interview on ABC radio. In this interview, he produced the
photographs as evidence of the report that children had been thrown overboard,
noting that they depicted women and children as well as one man in the water.
He also said:
I have subsequently been told that they have also got film. That
film is apparently on HMAS Adelaide. I have not seen it myself and
apparently the quality of it is not very good, and it’s infra-red or something,
but I am told that someone has looked at it and it is an absolute fact,
children were thrown into the water. So do you still question it?
Later that same afternoon, Mr Reith took the
relatively unusual step of telephoning Ms Jane Halton, Chair of
the People Smuggling Taskforce. He
told her that he had just released photographs, which were evidence of the
children overboard incident, and that there was a video and witness statements
from the crew which supported the original story.
This telephone call occurred at
the end of the day during which officers from Ms Halton’s Social
Policy Division had been seeking evidence for the report of children thrown
overboard from Defence’s Strategic Command Division. In response to these
inquiries, Strategic Command had provided a chronology of events which said
there was ‘no indication’ that children were thrown overboard, although it
conceded that it may have happened in conjunction with other SUNCs jumping
As discussed earlier, Ms Halton said that
this information was not acted upon as it ‘was overtaken by the information
that there were photos of the event that had been released to the media, there
was a grainy video and Defence were collecting witness statements’.
The Committee notes that at the
time of Mr Reith’s telephone call to Ms Halton, Mr Scrafton had
been informed that the video did not show children being thrown overboard,
although he had been told that it showed a 13 year old being ‘pushed’. No one
knew what the witness statements would contain, but simply that at best they
‘may’ corroborate the original report. In relation to the photographs, Mr Hampton had been
left a message, which he claims that he never got, telling him that they were
being connected to the wrong events. He had certainly been told that there were
doubts attaching to their veracity.
Although by 11 October the
Minister and his staff had not been told unequivocally that the original report
of children thrown overboard was incorrect, each of their numerous inquiries
had been met with the advice that there was not any evidence to support the
Despite this lack of evidence
and in the face of public and official questioning of the allegations, the
Minister confirmed the veracity of the original report in the media and advised
Ms Halton, the senior official responsible for the whole-of-government
management of ‘border protection’ issues, that he had evidence which backed up
The Committee is struck by the
minister’s keenness to persist with the original story in the face of repeated
advice that there was no evidence available to corroborate it. The original
report was extremely useful politically to a government making much of its
tough stance on border protection.
It is interesting to
contemplate what might have been the minister’s approach if he had been
presented with a report that served to work against
the government’s view. Would the minister have persisted with such a report if
there had been no evidence to corroborate it? On the contrary, it seems highly
likely that he would have been emphatic that the absence of corroborating
evidence was an excellent reason for dismissing the original report. If the
original report had been ‘inconvenient’, would the minister’s office have
sought so assiduously to pursue the evidence behind it?
Response to advice relating to
the photographs on 11 October
On the morning of 11 October, Mr Scrafton and Mr Reith were each
informed that the photographs released the previous day had been connected to
the wrong events.
Ms Bryant questioned both men, as well as Mr Hampton and Mr Hendy, about
their response to that advice. In particular, she sought to understand why
there had been no public retraction of the claim that the photographs were
evidence for the ‘children overboard’ incident on 7 October.
The explanation appears to be
in two parts. First, the Minister and at least some of his staff convinced
themselves that there was doubt about the veracity of the correction itself.
Second, no one took responsibility for the integrity of the public record.
Doubting the veracity of the
Mr Reith said that the doubts raised about the photographs on 11 October
‘were themselves contradictory’. He noted:
that one doubt was based on the timing of the incident, and a
suggestion that the video was infra-red and taken at night. When pressed, this
advice was found to be incorrect. He said that he and the office remained
sceptical and uncertain that the photographs were not from the overboard incident.
Mr Hampton and Mr Hendy also spoke of doubt being cast on the advice concerning the
misrepresentation of the photographs because of timing issues. Mr Hendy said that
he recalled being told that the Department’s reason for doubt ‘was that the children
overboard incident had occurred at night but the photos were clearly taken in
When Mr Scrafton found
the ship’s log of the event and ascertained that the event had occurred after
sunrise, then, according to Mr Hendy:
The Department had been told they needed a better reason for
doubt, and were told to check and come back.
Mr Hampton gave a similar account of the reason for doubting the advice,
despite the fact that on 11 October he had obtained a copy of the original
email with the photographs, correctly captioned and dated.
He said that Defence had
advised that the photographs could not be from the overboard incident, as that
had been captured on infra-red camera in darkness. Since the office established
that the overboard incident occurred after dawn, they still thought that the
photographs could be of that event.
Moreover, Mr Hampton also thought that the sinking occurred in darkness, so the
photographs could not be of that incident.
When Ms Bryant asked Mr Hampton about
the significance of the dated captions, he said that:
I acknowledge the email received by myself on Oct 11 had
accompanying text to the two photos which at
face value placed the photos at the sinking incident. I believe I passed
that email on to the Minister and Mike
Scrafton. The difficulty the Minister had
however was that information was also coming to the office saying that the
photos must have been wrong because they were taken during night hours. That
was quickly proven incorrect and doubt was therefore cast on the email author
as well... [emphasis added]
Mr Hampton also said that:
One must remember that all the information supplied to the
Government to this point from various quarters had been in support of the
allegation that children were thrown overboard and that these photos depicted
The Committee notes, first,
that the sinking of SIEV 4 occurred late in the afternoon (in daylight) and
that all the SIEV’s passengers were embarked on the Adelaide prior to sunset.
Thus, Mr Hampton’s claim that the sinking occurred at night and that the
photographs could not be of that incident is incorrect. Further, the Committee
notes that, as outlined in the previous section, no information apart from the initial report had been supplied to
Government ‘in support of the allegation that children were thrown overboard’.
According to Ms McKenry and
Brigadier Bornholt, they did not raise the issue of the timing of the incident
as a reason for doubting the veracity of the photographs, nor did their
discussion with Mr Scrafton touch in any way on the ‘infra red video’. As Ms Bryant pointed out in her
It is ... difficult to understand how, given that both incidents
clearly occurred during daylight hours, establishing that the overboard
incident had occurred during daylight could have been seen as evidence that the
photographs were of that incident. Furthermore, during his ABC radio interview
on 10 October, Mr Reith stated that the video was infra-red and this
understanding clearly did not affect the belief held by the Minister’s Office
on that day that the photographs and video depicted the same incident.
Like Ms Bryant, the Committee
was unable to establish which area, if any, in Defence had provided the advice
that the misrepresentation of the photographs was proven with reference to
‘timing’ issues. Given as well the lack of any coherence attaching to a
discussion about ‘timing’ as a factor
that would settle things one way or another, the Committee regards the
attempts by the minister and his staff to introduce such a consideration is
simply an attempt to further muddy the waters. Neither Ms McKenry nor Brigadier
Bornholt were asked to do any further checking of the photographs.
Refusal of responsibility
The Committee notes that, Mr
Scrafton, who spoke directly with Ms McKenry and Brigadier Bornholt, did not
raise the timing ‘problem’ as the reason for not acting on the correction they
provided. However, nor did he take any responsibility for ensuring that the
record was corrected.
Mr Scrafton stated in evidence
to Ms Bryant that he had discussed the PACC advice with Mr Hampton. However:
Mr Scrafton said that he did not advise Mr Reith, as this would
have been Mr Hampton’s role. He said that he does not know whether Mr Reith was
informed about the true nature of the photographs.
Mr Scrafton said that he was aware of some discussion of
retraction within the office (including between Mr Hampton and Mr Hendy).
However, he noted that it was a political issue and that therefore Mr Scrafton
was not involved in any decision making.
Mr Scrafton said that in his assessment, there was a judgement
made that the photographs had been quite widely distributed on the Restricted
[Defence email] system and were available to a large number of people. He
considered that the political solution was ‘not to raise’ the issue. He was not
sure if Mr Reith had been party to these judgements.
Mr Hampton said that Mr
Scrafton, not he, was involved in the discussion about a possible retraction:
Ms Bryant asked if the Minister’s office had considered issuing
a retraction or correction. Mr Hampton stated that at that stage it was between
the Minister, Mr Hendy and Mr Scrafton, and that he couldn’t comment on what
consideration, if any, was given to a retraction.
Mr Hendy said that ‘they never
got a clear answer on whether or not the photos were from the sinking’.
Questioned about the email advice from Ms McKenry which included the dated
captions, Mr Hendy said that ‘people were not as clear cut in their oral
advice’. He noted that:
when the question of the accuracy of the attribution of the
photos came up, the Minister made the decision within 24 hours that he would
not change the public record until he had conclusive advice about what had
actually happened with the original reports and the photos.
According to Mr Hendy, the
email advice from Ms McKenry ‘did not provide conclusive advice’, because in
view of the mistakes made by Defence in providing information an ‘independent
inquiry would be necessary to get to the facts’ and ‘PACC [would be] among the
people under investigation’.
Finally, Mr Reith himself
stated that it was not that he ‘made the decision not to change the public
record’, because that implied that he accepted that the photographs had been
misrepresented. Rather, he said, the reality was ‘that there was continuing
uncertainty and he was not willing to make further public comments which may
themselves not have been correct’.
On 14 October 2001, three full
days after having been advised of the misrepresentation of the photographs by CDF
and by Ms McKenry and Brigadier Bornholt, Mr Reith appeared on the Sunday
Sunrise program. Asked why he had released the photographs, but not the video,
of the so-called ‘children overboard’ incident, he replied that he had not yet
seen the video but that:
I was happy to have the Department release a couple of photos,
because there was a claim we were not telling the truth about what happened.
The Committee is extremely
disturbed by the lack of responsibility that was taken by the Minister and his
staff for the integrity of the public record.
Mr Scrafton took no
responsibility for ensuring that the Minister was made aware of the advice
concerning the misrepresentation of the photographs from Defence. Neither he
nor Mr Hampton took responsibility for advising the Minister of the need for a
retraction of the claim that the photographs were evidence of the children
overboard report. Mr Hendy justified the Minister’s refusal to correct the
record by claiming that PACC itself needed to be investigated, and Mr Reith
continued to make public comments that may have been technically correct but
were blatantly misleading.
Given that neither Ms McKenry
nor Brigadier Bornholt were asked to do any further checking on the
photographs, the Committee concludes that the quibbling about the timing
‘problem’ was not only illogical, but also a convenient rationalisation by
means of which the Minister and his staff absolved themselves of any obligation
either to correct the record or definitively to establish the truth of the
Response to advice from Air
On about 17 October, Admiral
Barrie told the Minister that there were serious doubts about the veracity of
the original report that children had been thrown overboard. However, as discussed in the
previous chapter, Admiral Barrie virtually guaranteed Minister Reith immunity
in relation to the claims, saying that he would stand by the original report
until someone produced what he considered to be ‘conclusive’ advice to the
On 7 November, the then acting
CDF, Air Marshal Houston, advised the Minister that in his view ‘there was
nothing to suggest that women and children had been thrown into the water’. He also told the Minister that the
photographs that had been released were of the sinking the day after the
alleged event and that the video, while inconclusive, provided no support for
the report of children overboard.
The next day, Vice Admiral
Shackleton made his comments to the media.
The response from Mr Reith and
his office was again twofold. First, they either denied or denied
responsibility for the advice. Second, they attempted to set up a smokescreen.
Denial of advice
Mr Reith wrote in his statement
to the Powell inquiry that:
At no stage have I received advice that the children were not
thrown overboard. There has been no evidence presented to me which contradicts
the earlier and first advice.
Mr Hampton said that he had
never received any advice that the event had not occurred. Mr Hendy said that:
for most of the period it was still the case (at least for him)
that they had been advised that children had been thrown and that this was a
fact. He said that he had heard some gossip (mostly subsequent to the election) but had never received further
advice about whether or not the incident had occurred [emphasis added].
Mr Scrafton also said that ‘he
had never been formally advised that it wasn’t true’. However:
he noted that he obviously spent time talking to people from the
Department and got the feeling that the claims may not have been correct.
Despite this ‘feeling’, Mr
Scrafton, so far as the Committee is aware, did nothing to ascertain the truth
of the matter nor did he suggest to others in the Minister’s office that this
would be the correct course to take.
Air Marshal Houston said that,
following the ‘stunned silence’ with which Mr Reith greeted his advice,
the Minister said, ‘Well, I think we’ll have to look at releasing the video’.
Mr Reith asked Mr Scrafton to
view, on 7 November, the copy of the video held at Maritime Command in Sydney.
Mr Scrafton said that ‘he considered that the tape clearly didn’t show that the
incident had happened. However, neither did it provide conclusive evidence that
the incident didn’t happen’.
The Prime Minister spoke to Mr
Scrafton ‘a couple of times that evening about the tape’, and was informed that
the video ‘was inconclusive’. The tape was nevertheless released the next day,
on 8 November, with no accompanying publication of Air Marshal Houston’s
advice. The Chief and Deputy Chief of Navy were advised by the Acting CDF, that
‘the Minister had informed him that all questions about the children in the
water aspect of the boarding were to be referred to his office’.
Later on 8 November, Mr Hendy
contacted Vice Admiral Shackleton about correcting or ‘clarifying’ his remarks
insofar as they ‘appeared to contradict the Minister’ by implying that the
Minister had not originally been told that children had been thrown overboard.
Telling the Committee of his
conversation with Mr Hendy, the Vice Admiral said:
In talking to Hendy, I gained a strong impression that he had
not been told that the original report was incorrect, and this came as a
surprise to me.
Because it has been unable to
question the relevant witnesses about the information flows within the
Minister’s office, the Committee is not in a position to judge whether Mr Reith
ever apprised Mr Hendy of Air Marshal Houston’s advice.
Nevertheless, it is clear that
Mr Reith himself must have been aware that the Vice Admiral’s clarifying
statement, to the effect that the Minister was advised that Defence believed
children had been thrown overboard, was, while technically correct, no longer
the whole truth.
The role played by Minister
Reith and his staff in the failure to correct the original and mistaken report
that children had been thrown overboard from SIEV 4 was decisive.
Through a combination of
denial, obfuscation, and misleading statements, the media, senior officials and
the public were deliberately and systematically deceived about the evidence for
and the veracity of the claim.
The Committee finds it
particularly galling that none of the individuals concerned, nor the executive
they served, has been held accountable for their disregard for the integrity of
the public record. The issue of the accountability of both ministerial advisers
and the executive will be discussed further in the next chapter.
Role of the Office of the Prime
Again because of its inability
to question the relevant witnesses, the Committee has been unable fully to
determine the extent, if any, to which the office of the Prime Minister knew
prior to 10 November 2001 that the veracity of the initial report that children
had been thrown overboard from SIEV 4 was in doubt.
In what follows, the Committee
briefly outlines the information that it does possess about the involvement of
the Prime Minister’s office in this issue. The major activity known to the
Committee centres around two periods, namely from 7-10 October, and from 7-8
The Prime Minister was first
made aware of the report that children had been thrown overboard by Minister
Ruddock, during the day on 7 October 2001, after the latter had spoken of it to
the media. The report was mentioned in an ‘options paper’ provided to the Prime
Minister by the PST on the same evening.
In subsequent days, the Prime
Minister made public comments, relying on the initial verbal report and its
iteration in the PST paper.
On 8 or 9 October 2001, the
Prime Minister’s international adviser, Mr Miles Jordana, contacted PM & C
asking if they were following up the details of the report. Ms Edwards informed the Committee
that she thought that Mr Jordana had rung ‘either Ms Halton or myself or both
on either October 8 or 9 seeking further details around the events of 7
October’. Ms Halton, however, said
that Mr Jordana had not rung her at that time, nor had she been aware of his
ringing Ms Edwards. Nevertheless
Ms Halton did ring him, she said, on 9 October to tell him that she had
requested members of the PST to provide ‘clarification’ of the details of the
On 10 October, the chronology
from Strategic Command was sent to the Social Policy Division in PM & C. Ms
Edwards said that ‘talking points derived from the chronology [were provided
to] Mr Jordana that evening’. As
the Committee has previously noted, the talking points prepared on 10 October
did not refer to children thrown overboard from SIEV 4. Ms Edwards expressed
the view that:
I assumed at the time ... that Ms Halton would also advise Mr
Jordana of the difficulties around the chronology, as well as the ‘footnote’,
as well as the subsequent advice from Mr Reith and his office of that
afternoon. In any event, no further follow up action was requested.
As noted earlier, Ms Halton’s
evidence conflicted with Ms Edwards’s sharply on this point. She told the
As I have said to you previously, I did not receive the
chronology and, again, Ms Edwards and I have different but not inconsistent
recollections in relation to the chronology. I did not see the chronology; I
did not receive it ... In terms of advice to people about that issue, no, I was
not providing advice to people about that issue. I was not undertaking that
In response to Ms Edwards’s
‘assumption’ that she would speak to Mr Jordana about the ‘difficulties’ around
the chronology, Ms Halton remarked:
I do not know why she would have thought that I had done it. To
my certain knowledge there were about five minutes between when I walked into
the building, when we agreed we had a conversation about the difficulty of the
facts, a series of phone calls and chairing a meeting. Quite when I was meant
to have done this, I do not know.
In earlier evidence, however,
Ms Halton said that she had briefed both Mr Jordana and Mr Moore-Wilton on 10
October about what had happened during that day. She told the Committee that:
As I have already said to you, in the evening meeting [of the
PST] of the 10th we put the facts, as we knew them, to the group.
No-one demurred, and I am pretty confident that those facts as we knew them
would have been communicated to Mr Jordana.
The Committee also notes that,
after the PST meeting, the talking points were sent at Ms Halton’s direction to
staff of Minister Ruddock, Minister Reith and Minister Downer.
On the basis of this evidence,
the Committee is unable to determine precisely what Mr Jordana was told on 10
October about the nature of the evidence for the report that children had been
thrown into the water from SIEV 4. The Government’s refusal to allow Mr Jordana
to answer questions about these matters has seriously hampered the Committee’s
ability to discharge fully its obligation to the Senate in this regard.
Also on 9 October, the Office
of National Assessments (ONA) made available to Ministers and the Prime
Minister a report (ONA report 226/2001) which, as part of a general briefing on
‘developments in the people smuggling issue in the region’, mentioned that children had been
thrown overboard. Although, as
will be discussed shortly, the ONA had no basis other than Ministers’
statements for this report, it may have been seen as a ‘reconfirmation’ of the
original verbal report.
On 7 November, doubts about the
veracity of the report that children were thrown overboard and about the
connection of the published photographs to that event, were raised in the
media. On that day also, Air Marshal Houston told Mr Reith that, in his
judgement, the initial report could not be supported.
The Prime Minister was due to
speak at the National Press Club on the following day, 8 November.
On the afternoon and evening of
7 November, Mr Jordana contacted both PM & C and the Office of National
Assessments, seeking what evidence they possessed which supported the report of
children thrown overboard. Neither could provide any additional evidence.
Ms Bryant told a Senate
Estimates committee that Mr Jordana had rung her ‘after around 5pm’ on 7 November, asking to be provided
with situation reports or other defence material held by PM & C which
related to the ‘children overboard’ report.
In her answers to questions on
notice from this Committee, Ms Bryant advised that she and her staff did not
succeed in locating any such material on 7 November. Her telephone records
indicate that she had informed Mr Jordana of that fact at 6.28pm. The following day, the search for
the material continued, and fax records show that at 6.20pm on 8 November a fax
of 11 pages was sent to the Prime Minister’s Office, comprising DFAT Sitreps 59
and 60 and a Strategic Command Operation Gabardine/Operation Relex report of 8
October 2001. None of this
material mentioned children thrown into the water.
Mr Kim Jones, Director-General,
ONA, informed a Senate Estimates committee that Mr Jordana had telephoned him ‘latish
in the afternoon’ on 7 November, asking ‘whether ONA had published any
reports containing references to children having been thrown overboard in this
incident’. At about 7pm, Mr Jones
faxed a note to Mr Jordana advising that he had found such a report, ONA report
226/2001. He also, he said,
provided the following advice to Mr Jordana:
I made the point that it was published on 9 October and that the
statements made by several ministers about this incident had been made on 7 and
8 October, and therefore the ONA report could not have been a source of the
information used in their statements ... I told him that we had not been able to
identify fully the source of the information in the report on the ‘children
overboard’ question and that we were continuing research on that. I said that
it could have been based on ministers’ statements but there may also have been
Defence reporting for which we were still searching.
On November 12, Mr Jones sent
further advice to the Prime Minister’s Office on this matter which confirmed
that the only basis for the ‘children overboard’ reference in the ONA report
was indeed ministers’ statements and that ONA did ‘not have independent
information on the incident’.
Over the same period that Mr
Jordana was seeking evidence for the report from PM & C and the ONA, the
Prime Minister was in touch with the office of the Minister for Defence.
As was noted earlier, following
the advice from Air Marshal Houston, Mr Reith had directed Mr Scrafton to view
the video of the so-called ‘children overboard’ incident held at Maritime
Command. Mr Scrafton did so, saying that he considered that the video did not
show that the event had happened, but that neither did it provide conclusive
evidence that it did not occur. In his statement to Ms Bryant, Mr Scrafton said
the Prime Minister rang him later that evening. He said he spoke
to the Prime Minister a couple of times that evening about the tape and
informed him that it was inconclusive.
Here again, the Committee’s
inquiry has been significantly hampered by Mr Scrafton’s refusal to
testify before it. The Committee finds it difficult to believe that it required
two separate conversations for Mr Scrafton to convey to the Prime Minister the
information that the videotape was ‘inconclusive’.
The question of the extent of
the Prime Minister’s knowledge of the false nature of the report that children
were thrown overboard is a key issue in assessing the extent to which the
Government as a whole wilfully misled the Australian people on the eve of a
Federal election. Its inability to question Mr Scrafton on the substance of his
conversations with the Prime Minister therefore leaves that question unresolved
in the Committee’s mind.
In this regard, the Committee
also notes the disclaimer made by Mr Scrafton at the outset of his statement to
the Bryant Report. He advised Ms Bryant that:
he had been involved in or aware of a number of discussions
between Mr Reith’s office and the Prime Minister’s Office and the Prime
Minister, which he could not discuss.
Regardless of the extent of his
knowledge of the facts of the case, it seems clear that by the evening of 7
November the Prime Minister knew that there were doubts surrounding the
connection of the photographs to the alleged events of 7 October. In an
interview with the ABC, the Prime Minister said that he had spoken on the
evening of 7 November to Mr Reith, who told him, in relation to the
photographs, that there was ‘some debate about whether they were one day or the
next’ and that ‘there was doubt about it’.
Both Mr Howard and Mr Reith insist that Mr Reith did not mention the telephone
call he received from Air Marshal Houston.
This evidence, that the Prime
Minister was aware of doubts attaching to the photographs, is consistent with
the fact that when Ms Halton rang Mr Jordana to tell him of the ‘tearoom
gossip’ concerning their potential misrepresentation on the evening of 7
November, Mr Jordana reassured her that it was being ‘dealt with’. In Ms Halton’s words: ‘They were
discussing it with Minister Reith’s office, and I had no sense from that
conversation of concern in any way, shape or form’.
Early on the following day, 8
November 2001, at about 7.15am, Mr Scrafton called Ms McKenry from Sydney to
say that ‘the government had decided to release the video of the footage taken
of UBAs on SIEV 4 on the day before the boat sank’.
According to Ms McKenry, the
‘government’ wanted the video released by noon which required her staff to work
urgently with PACC personnel in Sydney to ensure that copies of the video were
flown to Canberra as soon as possible. She advised that:
Later that morning I had a conversation with Tony O’Leary from
the Prime Minister’s Office on the suggestion of Mike Scrafton. Tony was after
confirmation that we would meet the deadline and asked about the availability
of copies of the video in Canberra. I also had a conversation with Peter Hendy,
COS [chief of staff] for Minister Reith, re the timing of the release ... The
video was released by PACC in Sydney in time for the midday news bulletins.
At lunchtime on 8 November, the
Prime Minister appeared at the National Press Club. In answer to a question
about the alleged misrepresentation of the photographs, the Prime Minister said
that his comments on ‘children overboard’ were based not on the photographic
evidence but on his discussions with Ministers Ruddock and Reith. He then
quoted from the ONA report which, he noted, he had received on 9 October.
In the afternoon of 8 November
(AEST), Vice Admiral Shackleton made his comments to the media concerning the
nature of the ‘original advice’ to Ministers. As already discussed, Mr Hendy
from Minister Reith’s office contacted the Chief of Navy and Ms McKenry saying
that he thought a statement was required clarifying that the Minister had been
advised that children were thrown overboard.
Mr Hendy said that he would
leave the content of the ‘clarifying statement’ to PACC and the Chief of Navy,
but he asked that a copy of the statement be sent to Mr Arthur Sinodinos
in the Prime Minister’s Office.
The Committee is unable to
conclude with any certainty whether the advice given to Minister Reith, which
overturned the report of the incident itself and the photographs as evidence of
it, was communicated fully to the Prime Minister and his staff.
Instead, the Committee draws
attention to the following points:
after 10 October, the Prime Minister’s Office
was relying for confirmation and evidence of the initial report on Minister
Reith’s endorsement of the photographs, the video and witness statements;
Mr Jordana was moved to seek further confirming
evidence on 7 November, presumably in the wake of increased media speculation
and in preparation for the Prime Minister’s forthcoming address to the National
by the evening of 7 November, Mr Jordana and the
Prime Minister both knew of doubts attaching specifically to the provenance of
the photographs, and the Prime Minister knew that the video was inconclusive
and did not prove the report;
also by the evening of 7 November, Mr Jordana
had gained no further written evidence to confirm the original report. He had
been advised by the ONA that their report may have been based upon Defence
sources, but also that it may have been based solely on ministerial statements;
on 8 November, the Prime Minister did not
respond to a direct media question about the attribution of the photographs,
but referred to advice received from Ministers Ruddock and Reith, and the ONA;
on the evening of 8 November, the Prime Minister
again cited the ‘unconditional’ ONA advice as the basis for his repetition of
the claim. On the matter of the photographs, he referred the media to Mr Reith.
There is no evidence that,
prior to 7 November 2001, the Prime Minister knew that any aspect of the
‘children overboard’ story was false.
The Committee is of the view
that no later than 7 November, the Prime Minister knew that, at the least,
there were genuine doubts about the connection of the photographs to the
alleged ‘children overboard’ incident and that the video was inconclusive.
The Committee is unable to
determine whether on 7 November Mr Reith, in telephone conversations with him,
informed the Prime Minister that there was no other evidence supporting the
claim, and that he had been informed by the Acting CDF that the incident did
not take place.
Adequacy of Defence’s Advice
In this third and final section
of the chapter, the Committee assesses whether, in view particularly of the
lack of response to their advice from Minister Reith, the senior officers of
the ADF and the Defence department could and should have done more to ensure
that the record was corrected prior to the election on 10 November.
In this discussion, the
Committee focuses on roles played by the officers who were potentially direct
conduits of information to either the Minister himself or to Ms Halton and
through her to the whole-of-government taskforce dealing with these matters. In
other words, the Committee focuses on the adequacy of the attempts to ensure
that the record was corrected by Admiral Chris Barrie, Air Vice Marshal Alan
Titheridge, and Dr Allan Hawke.
Admiral Chris Barrie
At the outset, the Committee
notes that the period from 7 October to 10 November and beyond was a period of
intense activity and commitment for the Australian Defence Force. Admiral
Barrie eloquently expressed the pressures under which he and other officers
were operating at the time, saying that:
we have got an organisation which at the strategic and
operational level is under more stress in terms of operations about to be
conducted and being conducted than at any time since I have joined the outfit -
in 41 years.
He outlined the range of those
operations as follows:
We were barely three weeks out from the brutal images of
aircraft smashing into the World Trade Center in New York and we were about to
join the launch of a dangerous mission to Afghanistan, Operation Enduring
Freedom. In short, I was focused on the imminent war in Afghanistan and the
urgent need to safeguard our homeland from a possible terrorist attack, the
risk of which I considered real and unprecedented.
As well, we were in East Timor, as we are now as part of our
commitment to peacekeeping, having played a major role there in the INTERFET
days. We were, and are now, in Bougainville preserving the peace. And we are in
Bosnia, the Middle East, Cyprus, Egypt, Sierra Leone and Solomon Islands. In
addition, we were supporting as required the government’s border protection
The Committee acknowledges that
judgements about the advice to be given in relation to the children overboard
incident were not being made ‘at leisure’, and that, in Admiral Barrie’s words,
‘this was not uppermost in my mind’.
said that, however, the Committee notes the suggestion from Professor Hugh
Smith, School of Politics, Australian Defence Force Academy (ADFA), that
Admiral Barrie was remiss in not pursuing more vigorously the persistent doubts
about the veracity of the event. Professor Smith said:
Certainly there is a feeling
that the CDF should have been able to pick up more rapidly and more strongly
than he did that this was a politically significant piece of corrected
information and he should have taken greater efforts to convey it to the
minister. ... A.......A lot of people say that it did not seem
significant at the time. But, I think, one of the responsibilities of people in
high office is to have an idea of what is going to be significant before the
problem arises. Certainly senior officers are expected to have some political
acumen, some political insight into what is important and what is not
important, what the minister must know and must be told, even if it is
inconvenient, and other information which is less important. ... You could argue
that even at the time the wider political significance was clearly important given
the nature of the election campaign.
Admiral Barrie clearly did not
ignore the issue, and clearly he did provide advice about it to the Minister.
The Committee, however, is concerned about several features of Admiral Barrie’s
approach to addressing the issue with the Minister. They are that:
he appears neither to have adopted the advice
sent up through the chain of command nor to have made an independent assessment
of the evidence supporting the initial report. As a result, he was unable to
advise the Minister definitively about whether children had been thrown
overboard or not, and virtually guaranteed Minister Reith immunity in relation
to his claim that the incident had actually occurred;
his advice in relation to the misrepresentation
of the photographs appears to have been weak; and
he apparently continued to protect the
Minister’s position up until 24 February 2002.
The Committee will address
these issues in turn.
Failure to provide definitive
advice on incident itself
Committee has referred elsewhere to Defence personnel and others explaining the
‘frangible’ nature of original reports, and indeed how the chain of command
recognises that initial information may be proved wrong later. Professor Smith
expressed the point thus:
On the specific case of tactical information—reports of an
immediate situation being made up the chain of command—yes, it is true that the
immediate commander will normally rely on the information coming to him or her.
Often, it is the only information that is available, it is necessary for
immediate action and it can be critical. ...But it is certainly recognised by
those in command in the military that information can be wrong. This is one of
the great problems of command. You have to, in many cases, take decisions
knowing that information is unreliable, incomplete and might change at any
... I think it is recognised that a lot of the initial
information—that is the only information available and the commander must act
on it—is doubtful. It may be proved wrong later. It is, in Brigadier
Silverstone’s word, ‘frangible’; it is not rock solid. So the military have
procedures for correcting information, for providing up-to-date reports as the
commanders—the chain of command—require.
General Powell, who conducted the Defence routine inquiry into the whole
affair, elaborated this in the following terms:
[O]perational information should be
corroborated at each level of command after commanders and staff have had a
reasonable opportunity to review, analyse and assess, in a deliberate manner,
the situation and/or events being reported. This process must take place at
each level of command and must be completed before information is passed to
superior commanders and their staffs.
The Committee considers that,
on the basis of this usually well-observed practice, it would have been
standard practice for Admiral Barrie to take as correct, and act on, the advice
that emerged from his senior officers via the chain of command.
11 October, as discussed in Chapter 4, the chain of command had made the
relevant inquiries and assessed the relevant messages, signals, statements,
video footage and chronologies, and had reached its verdict: the original
report was mistaken.
Barrie was advised to that effect on 11 October by Rear Admiral Ritchie,
Commander Australian Theatre, and the officer ‘directly responsible to the CDF’
for ‘the planning and conduct of ADF operations, including the operation which
is under discussion here, Operation Relex’.
Admiral Ritchie confirmed to the Committee that he was satisfied by 11 October
‘that there is no evidence ... to support the claim that children had been thrown
overboard’. He conveyed this to
the CDF in a ‘long conversation’ on that day.
When pressed by the Committee whether he was confident that he made clear to
the CDF that there was ‘no evidentiary support for ...children...overboard’, Rear
Admiral Ritchie replied: ‘Yes, I am confident’.
Admiral Ritchie said that, on the basis of what he recorded in his notebook
immediately after his conversation with the CDF, he was ‘fairly confident’ that
he had told Admiral Barrie that the video showed no children thrown overboard.
He also said that he had referred to the statements from the Adelaide’s crew that Rear Admiral Smith
had ordered Commander Banks to collect.
Rear Admiral Ritchie said that he:
gave no consideration to
sending those things [the statements] to CDF or passing them on any further.
They had come as far as they needed to go. We had formed the view and said
that, in all probability, this did not happen. The advice I got back was that
the issue would not be pursued any further.
was discussed in Chapter 5, however, Admiral Barrie conveyed a different
picture to the Committee of his conversation with Rear Admiral Ritchie. For
Admiral Barrie, the discussion was not as definite as Rear Admiral Ritchie
claimed. He told the Committee
that he thought that Rear Admiral Ritchie ‘understood’ that he had the
opportunity to ‘come back and convince me that I was wrong if they had material
that was evidence and compelling’.
this conversation, Admiral Barrie waited for about a week before advising the
Minister that there were any doubts about the original report and finally did
so in terms which indicated that he would ‘stand by’ it until further evidence
was produced. 
Committee remains perplexed about two matters. The first is why, on 17 October,
Admiral Barrie was still saying that the countervailing evidence had not been
produced. Certainly sufficient material had been gathered, read, analysed and
assessed through the chain of command to convince Brigadier Silverstone, and
Rear Admirals Smith and Ritchie that the initial report was wrong.
Second, if it were true that he remained
unconvinced by the advice provided to him, the Committee does not understand
why Admiral Barrie did nothing further to attain certainty about the incident
in his own mind. To put these points differently, the Committee does not
understand the basis upon which Admiral Barrie chose not to take the advice
provided to him by his senior officers.
asked by the Committee if he had ever previously given advice to a Minister
which contradicted that passed to him through the chain of command, the CDF
Yes. I always try to provide
the best quality advice to Government, based on my own assessment of advice I
have been given.
it seems to the Committee that Admiral Barrie did not make an assessment of the advice, so much as
make a decision to stick with the
original verbal report from Commander Banks to Brigadier Silverstone. He
certainly had access to no material or information that was unavailable to his
senior officers, and on the basis of which he might justify reaching a
relation to this point, Admiral Barrie told the Committee that by October 11,
he had been apprised of ‘no new fact or piece of information which would
satisfy [him] that the initial report was wrong’. He implied that Rear Admiral Ritchie
merely alerted him to the fact that ‘some’ were doubting that the incident had
occurred, but that he had not provided him with any reason for accepting that
if that is true, which in view of Rear Admiral Ritchie’s testimony seems
unlikely, the Committee notes that the CDF did not then proceed to take further
action. It is true that he checked that relevant witness statements had been
collected, and was advised that they were being held in Perth. However, he did not send for that
material or direct anyone to brief him further on the matter. 
the controversy surrounding the issue, the ‘testy’ ministerial conversation
about photos, the reports coming to him from senior officers, and Rear Admiral
Ritchie’s long conversation with him about the lack of evidence for ‘children
overboard’, the Committee regards it as a significant failure on the part of
Admiral Barrie not to have attended more diligently to settling the matter when
all the relevant material had been assembled as per his instruction.
Barrie himself said to the Committee that he regretted not giving to Rear
Admiral Ritchie, during their 11 October conversation, a direction ‘to get to
the bottom of the issue and make a positive determination one way or the other’ instead of ‘leaving it loose and
hanging and waiting for him to come back to me’.
problem is that while the CDF may have believed that, in their 11 October
conversation, he had given Rear Admiral Ritchie an opportunity to come back at
him with a ‘repechage’ of evidence, the
latter’s belief was that the matter was settled, and that there was no new task
to be pursued arising from their conversation. He was confident, he said, that
he had given clear and sufficient advice, and that Admiral Barrie had accepted
that no children were thrown overboard. Rear Admiral Ritchie told the
Committee: ‘I came away from the conversation on the 11th convinced
that the issue was a dead issue... So I would have had no cause to raise it
balance, the Committee thinks it reasonable to consider Rear Admiral Ritchie’s
belief as justified. The task which CDF claims he directed him to do – namely,
collect witness statements and evidence – was already in train. Rear Admiral
Ritchie stated in his evidence to the Bryant inquiry that he advised CDF this
was happening. By 11 October witness statements had been gathered and passed
through the immediate chain of command, and Commander Banks had forwarded a
detailed a chronology of events.
these circumstances Admiral Barrie’s direction to collect witness statements
and other material was redundant. Moreover, Admiral Barrie himself admits he
did not give any specific instructions for Rear Admiral Ritchie to do anything
beyond the assembly of material. Given that, in COMAST’s mind, there was a
settled conclusion that children had not
been thrown overboard, and that this conclusion had been reached on the basis
of an examination of the relevant material – written and visual – it would be
perfectly reasonable for Rear Admiral Ritchie to assume that the assembly of
the evidence in one place was simply a prudent and necessary administrative
action, not one which would result in an immediate review, once again, of the
In summary, then, by 11
October, everyone in the relevant chain of command – Commander Banks, Brigadier Silverstone, Rear Admirals Smith and Ritchie – had
concluded that no children had been thrown overboard from SIEV 4. The Committee
does not understand how, given the loudly proclaimed significance of the chain
of command as the authoritative vehicle for reports and advice and any
corrections thereto, Admiral Barrie – having taken no action to assess the
evidence himself or to make direct inquiries – nevertheless remained of the
view that the initial reports should be upheld. This was very convenient for
advice on photographs
the evening of Wednesday 10 October, Admiral Barrie received telephone calls
from both Rear Admiral Ritchie and Vice Admiral Shackleton, advising him that
photographs that had just been shown on the 7:30
Report were in fact of the sinking of SIEV 4 and did not connect to the
alleged ‘children overboard’ incident.
Admiral Barrie advised the Committee that he spoke
to the Minister the ‘following day’ and ‘told him that
I had been advised that the photographs he had put out did not describe the
events as he portrayed on the 7.30 Report’.
Barrie went on to say that:
remember his precise response, save that we had a discussion about there being
a great deal of confusion about the photographs. But I do recall that our
conversation was testy.
to Admiral Barrie’s testimony to the Powell, Bryant and Senate Committee
inquiries, however, the focus of this conversation with the Minister was on the
‘confusion’ about the photographs and the need in future to be sure that ‘we
were talking about the same documents’.
Committee notes that whatever confusion and misunderstanding there may have
been between Defence public affairs and ministerial advisers during the
transfer of the photographs between their respective offices, there was
absolute clarity within Defence about the fact of the photos being of the
sinking, and not of the alleged ‘children overboard’ incident the previous day.
that Admiral Barrie had been forthrightly advised by COMAST and Chief of Navy
that the photographs were wrong and that the Minister was on the public record
stating an untruth, the Committee is of the view that Admiral Barrie should
have been determined to ensure that the minister understood clearly that there
was an error and that the public record needed correcting.
have concluded his conversation with the minister with ‘an agreement ... that
never again would we discuss photographs without ensuring that we both had the
same photographs in front of us’
was a useful thing. However, it was relatively trivial in comparison with the
key issue, namely, that there had been a significant error made concerning an
incident that was controversial and probably inflammatory, and that the public
record had to be corrected. Admiral Barrie told the Committee that the
‘conversation never went at any point to what was going to be done about it’.
Committee has previously noted that on 14 October, after he had been advised by
Admiral Barrie that the photographs were not evidence of children thrown
overboard, the Minister said on the Sunday Sunrise program that:
I was happy to have the Department release a couple of photos,
because there was a claim we were not telling the truth about what happened.
the Committee asked Admiral Barrie whether he thought that the Sunday Sunrise
statement was consistent with the Minister’s agreement days earlier to ‘drop
the issue’, the CDF responded:
In my view, there was no
connection between the Minister’s remarks on the Sunday Sunrise program and his
statement that he would ‘drop’ the issue of the confusion over the photographs.
Committee is of the view that, rather than ‘no connection’, there was no
consistency between the Minister’s agreement with CDF and his public statements
on Sunday Sunrise.
Protection of the Minister’s
Regardless of what failure,
inadequacy or offence might be discerned in relation to Admiral Barrie’s advice
about the incident and the photographs, the greater problem was Admiral
Barrie’s continued reluctance, as opportunities repeatedly presented
themselves, to give to the matter the attention it required. This is especially
so given the statements and advice about it coming to him, via the chain of
command, through the top echelon of the ADF.
On November 12, Air Marshal
Houston briefed Admiral Barrie about Vice Admiral Shackleton’s comments to the
press about the nature of the original advice to the Minister, and reported to
him that ‘on the previous day he [Houston] had advised Minister Reith
that...children had not been thrown overboard’.
Admiral Barrie told the
As a result of what Air Marshal Houston told me and my doubts
about what had in fact occurred, I decided to commission an inquiry to
establish the facts and see if any corrective action was needed.
The Committee is puzzled as to
why Admiral Barrie
commissioned a further inquiry at this stage. He did not first speak to Air
Marshal Houston about ‘the basis of his advice to the Minister’, and he had, on his own account,
barely a month earlier directed the taking of evidence that he knew had
resulted in key documentary material being gathered and assembled in Perth, and
which was available to him at any time he might ask for it.
On 17 December, Major General Powell presented his report to Admiral
Barrie, and briefed him on his key findings – notably that no children had
been thrown overboard from SIEV 4. This considered report and its conclusions,
based on substantial evidence, and including numerous statements, eyewitness
accounts, signals and logs, was still not enough it seems for Admiral Barrie to change his advice to the minister.
The Committee is surprised that
the CDF, as the government’s principal military adviser, apparently did not
even foreshadow with the minister’s office the potential difficulties that the
Powell Report might bring once its findings were made public. Moreover, he
sought to defer any action on the basis of the Report, making the judgment
[B]efore analysing the evidence and dealing with his [Powell’s]
recommendations I would await the Bryant report. This report would also be
covering many of the issues, and was expected by late December. I thought the
most efficient and reliable way to get to the bottom of things was to have the
benefit of both reports and the entirety of the evidence upon which they were
Again, the Committee is struck
by this judgement which seems to be entirely at odds with the CDF’s stated view
that he alone asserts the right and responsibility to make the call in relation
to Defence operational matters. While the full complement of controversy
certainly embraced the civilian as well as the military arms of the ADO,
Admiral Barrie had consistently stuck to a view which was grounded in, and
informed by, strictly operational
considerations – namely, Commander Banks’s original, in situ, verbal report as
recorded by Brigadier Silverstone.
On 24 January 2002, the Bryant Report was received by the Defence Department Secretary, but it seems Admiral Barrie was not alerted to its arrival before he departed on leave on 27
January. Admiral Barrie returned
to Australia on 19 February and appeared before Senate Estimates on 20 February 2002.
During the Estimates hearings, Admiral Barrie maintained that he was never ‘persuaded myself that there was
compelling evidence that the initial report of the commanding officer was
wrong. It was my view that the photographs were simply part of the evidentiary
material. The really important aspects of this are witness statements and
perceptions, and that initial report, so far as I was concerned, ought to
stand. I never sought to recant that advice which I originally gave to the
The Committee notes that the
Secretary of the Department of Prime Minister and Cabinet, Mr Max Moore-Wilton,
maintained similarly during the Estimates hearings that he also was not
persuaded that the absence of evidentiary material by itself ‘proved’ that the
incident had not occurred. He said: ‘I am not aware that children have not been
thrown overboard. I do not think anyone has yet established whether children
have been thrown overboard or not. What they have established is that there is
no documentary evidence’.
During the Estimates hearings,
however, the nature of the different advice provided to the Minister by Admiral
Barrie and Air Marshal Houston was made public for the first time.
Also during those hearings, Admiral Barrie’s
attention was finally drawn to the chronology from CO Adelaide dated 10 October 2001 which did not report a child being
thrown overboard. This was the first time Admiral Barrie had read the signal,
which had been included in the Powell Report Enclosures, and which was a key
written message that had led Defence personnel to repudiate the original
‘children overboard’ report.
Admiral Barrie stated to the
When I left the Senate legislation committee hearings, I was
acutely conscious that I would have to determine absolutely one way or another
within a short space of time whether or not children were thrown over the side.
Over the weekend, I read through the material available to me to see whether it
was sufficient to answer all my queries about what had happened. ... As the
material did not satisfactorily resolve all the issues in my mind on the
evening of Sunday, 24 February 2002
I arranged through Maritime Command in Sydney
for the ship to telephone me. I then spoke to Commander Banks.
We discussed the events of 7 October
2001, and he informed me that he was sure that no child had been
thrown overboard. I questioned him closely to test the basis for his assurance.
On the basis of this conversation, which put to rest the concerns that I had
about the written material, I was convinced that, despite the initial reports
to the contrary, in fact no child had been thrown into the water from SIEV4 on 7 October 2001.
The item that galvanised Admiral Barrie’s attention during Estimates in February 2002 – the 10 October 2001 signal from Commander Banks – had in
fact been brought to his office by Brigadier Bornholt on 11 October 2001. The Brigadier had explained to the CDF’s Chief of Staff that the
signal, which chronicled the events of 7 October ‘indicated that there were no
women or children in the water’.
The significance of Brigadier Bornholt’s delivery of the signal was apparently
not appreciated by the Chief of Staff.
It is regrettable that Admiral Barrie was unaware of the contents of the October 10 signal. While the
Committee accepts that Admiral Barrie was
indeed ignorant of the signal up until 20 February 2002, the fact of his ignorance does not exhaust the account. No doubt a
copy of the signal was also with the other material in Perth. It was this
same signal that prompted Air Marshal Houston to take
the action he did on November 7 when, as Acting CDF, he advised the Minister
that no children had been thrown overboard.
the Committee is also disturbed by the character of Admiral Barrie’s own contributions to the Powell and Bryant inquiries. In his statements to both,
Admiral Barrie does not indicate that he ever unequivocally informed the
Minister for Defence either that the photographs were misrepresented or that
there were serious doubts about the so-called ‘children overboard’ incident
example, in his statement to the Powell inquiry in relation to his advice about the
photographs, Admiral Barrie wrote:
It seemed that it had become
possible that material released by the Minister, was not the same material I
had been advised had been provided to the Minister’s office. I could not say
whether or not such was true. During this conversation the Minister and I
agreed that in future we would need to ensure that we were speaking about the
same material if we were to have another discussion about the release of
statement for the Bryant Report records that:
Admiral Barrie recalls that
he had an informal discussion with someone, but couldn’t recall with whom,
about doubts concerning the children thrown overboard claim. He said the doubt
didn’t originate with the Adelaide,
but there were doubts in headquarters ... Admiral Barrie did not inform the
Minister that there was firm evidence to suggest that children were not thrown
in the water because he was not aware there was such evidence. In discussion
with the Minister, it had become apparent that we were talking about two
different sets of photographs and we had a discussion about the future handling
to make sure that this would not happen again.
Committee is satisfied that Admiral Barrie’s sworn testimony to the Senate
inquiry establishes that, in fact, the CDF did give more direct advice, at
least about the incorrect attribution of the photographs, than is indicated by
these earlier statements. However, the Committee is disturbed at the extent to
which these earlier statements themselves appear to aim more at protecting the
Minister’s position than at conveying forthrightly just what advice the CDF
provided to him. This apparently ongoing attempt to ‘cover’ for the Minister is
The Committee does acknowledge
the enormous workload under which Admiral Barrie and his senior officers were
labouring at the time of the ‘children overboard’ controversy. It acknowledges
that, from a military and operational perspective, whether or not children were
thrown overboard was an utterly unimportant issue.
However, the Committee cannot
but contrast the approach and mindset of the CDF with that of some of his
senior naval colleagues in the chain of command. When these colleagues heard
doubts, they actively pursued further inquiries. When they were presented with
evidentiary material, they acted in accordance with the evidence. When these
colleagues made considered judgments, they promptly passed them up the chain of
command, and reported back down it. When they became aware of errors, they
quickly advised the relevant parties and pressed for their correction.
The contrast is illustrated,
for example, by the following evidence from Rear Admiral Smith concerning his
decision to bypass the chain of command and speak directly to Commander Banks
about the ‘children overboard’ claims - an action not lightly taken:
I instigated that action because I was becoming concerned at the
different reports that I was getting. I was aware of the different points of
view of Commander Banks and Brigadier Silverstone. I was acutely aware of the
sensitivity of this particular subject and the visibility it was getting within
the media. I just wanted to cut to the chase and find out what actually
Although Admiral Barrie clearly
had a broader range of responsibilities and was working under correspondingly
greater pressure than was Rear Admiral Smith, the Committee notes that Admiral
Barrie did nevertheless have a number of conversations with Minister Reith on
this matter over the period. It is not clear to the Committee that it would
have taken more time and effort for Admiral Barrie to pass on the advice he
received from his chain of command in a direct and forthright manner, than it
took for him to do so equivocally.
Like Admiral Barrie, Air Vice Marshal
Titheridge’s workload during the relevant period was dominated, he said, by
Operation Slipper and the war on terrorism.
He was nevertheless the chief
representative of the Defence forces on the People Smuggling Taskforce,
although he noted that by early October ‘the need to focus on planning for the
Australian Defence Force’s contribution to the war on terrorism ... curtailed my
personal attendance at the unauthorised arrival management interdepartmental
committee and I was increasingly represented by my senior staff’.
He was also the channel through
which the initial verbal report that children had been thrown overboard was
conveyed from Brigadier Silverstone to Ms Halton on 7 October 2001.
Air Vice Marshal Titheridge did
not at any stage advise Ms Halton or the People Smuggling Taskforce either that
there were serious questions about whether children had in fact been thrown
overboard or that the photographs released as evidence of that event were
actually taken on a different day. He did not do so, he said, because it was
not until November 25 that he saw a newspaper article which caused him to doubt
the initial report.
The Committee notes, however,
that Air Vice Marshal Titheridge’s evidence about the date on which problems
with the ‘children overboard’ story first came to his attention is in tension
with the evidence of a number of other witnesses.
Rear Admiral Ritchie, for
example, told Ms Bryant that he thought that on 11 October he would have
informed Air Vice Marshal Titheridge ‘in accordance with normal practice’ that
he had been told there was no evidence supporting the original report. Although Rear Admiral Ritchie said
that he had no record of informing AVM Titheridge, his assumption that he did
is supported by evidence taken from Rear Admiral Smith.
Rear Admiral Smith told the
Committee that he had rung Air Vice Marshal Titheridge, according to his phone
records, at 11.58am on 17 October 2001. He said:
I advised him of what was occurring with SIEV5 and then we had a
general conversation about the issue of SIEV4, photographs and children
overboard et cetera. I made the point to him: did he know that none of it was
true? He advised me that yes, he knew. So that again satisfied me that the
chain of command were aware that there was no substance to those allegations.
Rear Admiral Smith went on to say that he had unknown139unknown1ReRsubsequently advised Admiral Ritchie that he had had that
conversation with the Air Vice Marshal. He confirmed that he was ‘in absolutely
no doubt’ that the Head of Strategic Command knew that no children had been
Within Air Vice Marshal
Titheridge’s own Strategic Command Division, there was also knowledge that, at
the least, there were doubts about the availability of evidence to support the
report and that the photographs had been misrepresented. The chronology with
the notorious ‘footnote’ that was provided to PM & C on 10 October, for
example, was compiled in AVM Titheridge’s Division.
Similarly, the Director Joint
Operations, Strategic Command, Group Captain Steven Walker, advised the
Committee that he knew from the time of their first publication that the
photographs were ‘wrong’. He said that he had had a number of conversations
with his contact in PACC about that issue, and that he ‘presumed’ that he had
discussed it with the Air Vice Marshal, although he had no specific
recollection of doing so. The reason, he explained, for his ‘presumption’ was
We have regular meetings and briefings to share information
within headquarters. I presume it would have been covered, because it was a
topical issue of concern at the time.
Finally, Air Marshal Houston
told a Senate Estimates committee that, after he had advised the Minister on 7
November that there was no evidence to support the report that children had
been thrown overboard from SIEV 4, he ‘back-briefed’ Air Vice Marshal
Titheridge about the conversation.
The Committee questioned Air
Vice Marshal Titheridge at some length about the discrepancies between the
recollections of other officers and his own. The Air Vice Marshal reiterated
that he had no memory of any doubts being raised in relation to the ‘children
overboard’ story until later in November.
I looked back at that period and I looked at my notes for that
period and just about all the references, apart from subsequent SIEVs, are on
‘war against terror’ and other issues. I think I said to you that I did not
focus on it; it was just not an issue for me until late November.
The Committee notes, however,
that according to evidence from Ms Halton and Ms Edwards, two specific requests
were made of Air Vice Marshal Titheridge in the days following the
dissemination of the report that he confirm the initial advice.
The first request was made at
the PST meeting on 9 October 2001 at which he was the Defence representative.
Ms Halton’s statement to the Bryant Report, which she confirmed in evidence to
the Committee, records that she ‘told the Defence rep ... that they had better be
certain about the veracity of the initial reports and they should do some
Ms Edwards also noted that
there was discussion at that meeting about the adequacy of ‘internal
information flows ... particularly in response to the lack of detail being sent
to DFAT for inclusion in their situation reports (in particular Sitreps 59 and
60)’. As noted earlier, Ms Edwards
told the Committee that it was concern about the lack of mention of children
overboard in those DFAT Sitreps that had led her and Ms Halton to ‘follow up to
obtain further details of the incident’.
The notes of the PST meeting
for 9 October record, under the heading ‘Information processes’, that:
- in future, Defence will provide PM & C and
DFAT with three times daily bulletins
- AVM Titheridge will continue to ring Jane with
updates to enable MO [Minister’s Office] media people to be briefed
- Noted that the normal link was the field
commander through CDF who would brief Minister Reith.
Ms Edwards noted in evidence
As a result of this conversation Defence provided written
updates two or three times a day ... for the remainder of the time the potential
unauthorised arrivals remained on the Adelaide.
As has previously been
established by the Committee, however, none of those updates contained
information that confirmed the initial report that children had been thrown
The second request for
confirmation of the initial report was made by Ms Edwards. She informed the
Committee that once she had received the Strategic Command Chronology on 10
October, she recalled attempting to contact Air Vice Marshal Titheridge ‘and
initially speaking to one or more officers in his absence’. She then, she said,
spoke to the Air Vice Marshal ‘personally, seeking clarifications on the
material and suggesting that a more definitive answer be sought through the
chain of command around whether the events occurred’.
Ms Edwards said, however, that
she did not recall ‘any written material being provided to PM & C in
relation to the events of the morning of October 7 other than the chronology’.
In relation to the role played
by Air Vice Marshal Titheridge in the failure to correct the ‘children
overboard’ story, the Committee makes two points.
First, it is clear that he
himself did not appreciate the significance of the issue. The Committee
acknowledges that Air Vice Marshal Titheridge’s primary focus during this
period was on preparations for the war in Afghanistan. Nevertheless, he was
also the Australian Defence Force’s senior representative on a high level
interdepartmental taskforce which was coordinating activities as a result of
which the lives and safety of hundreds of individuals were at stake.
The Committee finds it
difficult to believe, in the face of the testimony of Rear Admirals Ritchie and
Smith, Air Marshal Houston and Group Captain Walker, that Air Vice Marshal
Titheridge was not informed of the lack of evidence for the initial report that
children had been thrown overboard. His failure to register and pass on that
information to his colleagues on the PST is rendered particularly serious by
the fact that he was directly questioned on two occasions about the veracity of
the report by the Chair and another member of that high level interdepartmental
Second, the Committee notes
that no emphasis seems to have been placed on providing Air Vice Marshal
Titheridge with the corrected information in order that he might effectively
discharge his responsibilities as Defence’s representative on the PST. For
example, there is no record of Admiral Barrie ensuring that the Air Vice
Marshal was in possession of the correct information so that he could
communicate it in the appropriate whole-of-government forum. Defence’s focus
seems to have been solely on its ‘vertical’ responsibility to the Minister,
rather than on its ‘horizontal’ responsibilities to the wider bureaucracy and,
thereby, to the rest of government.
This focus seems relevant also
to an explanation of the role played by the Secretary of the Department of
Defence, Dr Allan Hawke.
Dr Allan Hawke
Hawke became directly involved in what he called the children overboard
‘imbroglio’ on 11 October 2001, in
the context of attempts to correct the misrepresentation of photographs
purporting to support the view that children had been thrown overboard. On that
day, Dr Hawke was advised of the misrepresentation by the Head of Defence’s
Public Affairs and Corporate Communication and of the fact that, as described
in Chapter 5, advice to that effect had been passed by phone and email to Mr
Hampton and Mr Scrafton in the Minister’s office.
8 November, the then Acting CDF, Air Marshal Houston, advised Dr Hawke that he
had told Minister Reith that there was nothing in the evidence he had seen to show that children
had been thrown overboard.
the same day, following the Prime Minister’s answers to questions about the
photographs at a Press Club luncheon, which included a reference to an ONA
report, Dr Hawke asked for a copy of that report and any other Defence
intelligence material indicating that children had been thrown overboard. There
was none – a fact that Dr Hawke confirmed the following morning with the
relevant senior Defence official.
in the afternoon of 8 November, Dr Hawke became aware of comments made by the
Chief of Navy, Vice Admiral Shackleton, to the effect that Defence had never
advised the Minister that children had been thrown overboard. Dr Hawke later
faxed to the head of PM & C, Mr Max Moore-Wilton, a copy of the ‘clarifying
statement’ by Admiral Shackleton about the advice given to the minister.
Hawke told the Committee that he had asked himself whether he ‘could have or
should have taken a more active involvement’ in the provision of advice:
I certainly could have. Whether I should have remains an open
question in my mind, with one clear exception. The clear exception where I
might well have done more is my involvement in the matter of the photographs.
In retrospect, I should have discussed that issue directly with and provided
clear written advice to Minister Reith.
Responding the question, why
did he not write to Minister Reith, Dr Hawke said that:
At the time this was not a big issue. It subsequently became so...
It is easy to say that there were a lot of other things going on and that I was
attending to those, and that this issue was not very large on the radar screen
at the time.
Similar comments were also made by the CDF and
others, but the Committee is equivocal about such an assessment. The matter
seemed to be on the ‘radar screen’ of the media. For example:
it is incontrovertible that there was
significant media interest in the events at the time – the photographs were
released in response to emphatic calls from the press for ‘proof’ of ‘children
on 12 October, the Sydney Morning Herald (SMH)
reported statements by Deputy Prime Minister Anderson that ‘from time to time’
asylum seekers threw children into the water in order to compel the navy to
help them. The SMH also reported that
the Immigration Minister could not verify such claims;
on 7 November an article in The Australian reported comments from Christmas Island residents
claiming that HMAS Adelaide crew
members had said that children had not been thrown overboard. This article was of sufficient
moment to prompt the Minister to seek an urgent conversation with the Acting
Vice Admiral Shackleton’s comments of 8 November
were headline news, and Dr Hawke had been associated with the release of the
subsequent ‘clarifying statement’.
Even setting aside the press
and television interest, the Committee notes that on 9 November 2001, the Sydney Morning Herald wrote to Dr Hawke,
Admiral Barrie, Minister Reith and Minister Ruddock and others in the following
Today the Sydney Morning Herald is putting a series of questions
to officials, defence personnel, ministers and ministerial staff on asylum
seeker issues, including the circumstances surrounding claims that children
were thrown off the asylum seeker vessel intercepted in the vicinity of Ashmore
Reef last month.
Your response will assist tomorrow’s news coverage and analysis.
In the event responses are not received, consideration will be
given to publishing ‘The questions they would not answer’ and who refused to
The questions sent to Dr Hawke
included one asking whether he was aware ‘of an official cover-up of the
circumstances surrounding the incidents of October 7-8, notably in relation to
the false claim that children were thrown overboard?’
In response to this letter,
Defence’s Public Affairs and Corporate Communication sent a fax, which said:
I am not in a position to release the information requested. As
you would be aware this is a whole of Government issue. In view of the
foregoing, you may wish to direct your inquiries to the Minister for Defence.
By this stage it was presumably
clear to Dr Hawke that the Minister had no intention of retracting his claims
about the photographs, and that he had not publicly responded to or
acknowledged the advice of Air Marshal Houston two days earlier. Even so, and
with the media actively seeking the truth about this issue, Dr Hawke did not
put advice in writing or express his concern to the Minister about either
The Committee notes, then, that
there are potentially three grounds for criticising Dr Hawke’s actions in
this period. They are that he:
did not put advice in writing to the Minister in
relation to the photographs;
did not pursue the Minister in relation to the
advice provided by Air Marshal Houston; and
did not communicate any of this advice to PM
& C or the PST.
On the first matter, Dr Hawke
has acknowledged the deficiency of his actions and told the Committee that he
had offered his resignation to the incoming Minister for Defence, Senator Hill,
on the grounds that he felt ‘in retrospect’ that he should have put that advice
On the second matter, Dr Hawke
expressed the view that it was an ‘operational’ matter, and thus the province
of the CDF. Moreover, at the time that Air Marshal Houston gave his advice to
Mr Reith, Dr Hawke said that he ‘was aware that CDF (Admiral Barrie) held to his
original view, so it was a matter within the Australian Defence Force’.
The Committee discusses Dr
Hawke’s ‘strict’ view of the diarchy between himself, as civilian head of
Defence, and CDF, as military and operational head of Defence, in the next chapter.
It notes that there is at least some argument to be made that, in an operation
essentially under civilian whole-of-government control, the Secretary of
Defence should have played a larger role in ensuring that the Minister did not
promulgate misleading information.
Finally, the question of Dr
Hawke’s responsibility for providing clarifying or corrective advice to the
whole-of-government taskforce dealing with these issues was raised explicitly
in evidence to the Committee. The question invites reflection on how
accountability is to be properly effected in whole-of-government operations.
Halton, for example, wondered why Dr Hawke, who was a relatively close
colleague of hers, did not pick up the phone and talk to her about the problems
he had come to know about. She said:
I had a small number of calls with people in Defence through
this period. I had a conversation with Ms McKenry; I had a conversation with Dr
Hawke. Some of those people have been known to me for very many years. The
notion is that it was not possible for one of those people, or any of those
other people for that matter—bureaucracies are a big place and a small place
and inevitably there are people that you have worked with in various
environments in all sorts of agencies—to pick up the phone—on a couple of
occasions I was explicitly asking about things—and say, ‘You just need to know
that this looks a bit dodgy’ or ‘We are a bit concerned.’ As I said, not only were we not told; it was
never alluded to—there was never the slightest suggestion. I am probably as
perplexed as you as to why, given some of the personal connections with people
in that agency, that did not happen.
Patrick Weller, an academic expert on public
administration, elaborated on the issue in
the following terms:
If a secretary ... is advising
his minister about an issue and he knows that the Prime Minister is also on the
public record about that incident, but he feels that the minister is not
passing on the information to the Prime Minister, does that secretary not have
an obligation to make sure that at least the Prime Minister and his department
are aware that there are facts wrong and that there is severe doubt about what
In those circumstances I would have thought the appropriate role
for the secretary of such a department would be to ring the secretary of the
Prime Minister’s department and say, ‘We’ve got problems. We have severe
doubts. The Prime Minister has been on the record that this happened. He did
say “if the reports are correct”. The reports are not correct.’ It seems to me
that the system again has failed in that case. If this stayed within the
Department of Defence, the minister may or may not have been briefed, may not
have appreciated the brief or may have just decided that he did not want to
pass on the brief, but it seems to me that the department still has a
responsibility to the government as a whole and particularly to the Prime
Minister to make sure that the Prime Minister’s department knows that something
is wrong or there is a correction coming through about what has been said in
those circumstances. In those senses I would be critical of some of the advice
that has been given up and whether or not the system worked.
Hawke responded to the comments of Ms Halton and Professor Weller in a letter
to the Committee. The essence of
the response was that CDF was responsible for directing Defence’s involvement
in border protection and for reporting to the government on these matters. The
CDF had, until 24 February 2002, held to the position that he was ‘yet to be
convinced that the original report that children had been thrown overboard was
incorrect, and so advised the Minister for Defence’. Dr Hawke stated:
For my part, I believe it
would have been quite wrong for me to have cut across the considered position
of the CDF on the initial allegations by contradicting it before the Minister
for Defence or, more especially, anyone outside of Defence.
Hawke concluded the letter by referring to the Ministerial Directive that:
made it absolutely clear
that my actions must not be inconsistent with ‘the CDF’s role as principal
military adviser and his statutory responsibilities and authority as commander
of the Defence Force’.
The Committee notes that Dr
Hawke’s letter, beyond noting that the Minister was advised about the
misrepresentation of the photographs on 11 October, does not go to the question
of the responsibility of either himself or CDF, through Air Vice Marshal
Titheridge, to inform agencies or individuals outside Defence of that
Clearly an issue that emerges
from this affair is the question of the relative significance of ‘vertical’ as
opposed to ‘horizontal’ lines of accountability for contemporary governance.
The Committee discusses that broader issue in the next chapter.